STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3073

)

JOYCE L. LORD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 6, 1983. The parties were represented by counsel:

For Petitioner: Dennis R. Erdley, Esquire

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: Paul Shimek, Jr., Esquire

311 North Spring Street Pensacola, Florida 32501

These proceedings arise on petitioner's notice of violation and orders for corrective action dated October 8, 1982, alleging that respondent's placement of fill and installation of pilings in Bayou Garcon, "without appropriate and currently valid dredge and fill permits," have had certain adverse environmental effects and have occasioned the incurring of certain costs by petitioner.

Petitioner seeks $500 in damages, $93.66 in costs, restoration of the status quo ante and other relief.

FINDINGS OF FACT

1. Respondent Joyce L. Lord owns real property on Innerarity Point fronting on Bayou Garcon, which lies off Pedido Bay, in Escambia County, Florida. When her neighbor to the east unplugged a canal in 1977 (without respondent's consent, even though she is a joint owner) she feared that her shoreline would erode, because this was the sequence of events 15 years ago, the last time the canal was opened up.

   
   

   PERMITS ISSUED

   
   

2. On November 9, 1978, petitioner, Department of Environmental Regulation (DER) issued a dredge and fill permit No. 17-11736-1E, authorizing respondent:

   
   

   To construct a vertical seawall along the approximate mean high water line, extending 10' waterward

   of this line at the eastern 40' portion of the project, and to place approximately 15 cubic yards of fill material in accordance with [an attached drawing] 1/

   . . . DER's Exhibit No. 1.

   
   

   Among the permit conditions was a provision that "the work authorized by this permit shall be valid for a three (3) year period that shall commence upon receipt by the permittee of all governmental authorizations, state and federal." DER's Exhibit No. 1. On May 18, 1979, the United States Army Corps of Engineers (Army Corps) issued its permit "to construct a riprap revetment and to construct a vertical bulkhead with backfill," DER's Exhibit No. 6, to which was attached a drawing identical to the drawing 2/ incorporated in the DER permit. The Army Corps permit specified an expiration date of May 18, 1982. DER's Exhibit No. 6.

   
   

   PILINGS PLACED

   
   

3. In the summer of 1979, respondent put in no less than 14 pilings. She and a friend began by measuring from a tree depicted in the drawing incorporated in both the DER and the Army Corps permits to a point ten feet north of the tree and aligning pilings on an east-west axis through that point. Perpendicular to this line, pilings were placed in a row lying north and south, east of the pine tree, along respondent's property line. The placement of these two rows of pilings, which meet at right angles, at a point northeast of the tree, was concededly in conformity with both the DER and Army Corps permits, according to at least one of petitioner's witnesses.

   
   

4. The third row of pilings was placed in a south- westerly-northeasterly direction beginning at the western end of the east-west row of pilings and going to what is now the eastern edge of a fill promontory jutting out into Bayou Garcon from respondent's property. In the drawing incorporated in both the DER and the Army Corps permits, this third row of pilings is depicted as coming ever closer to a shoreline that forms a straight line from the point of intersection with the bulkhead line (the third row of pilings) to the tree. Both when the permit issued and at the time of hearing, however, the shoreline along that stretch was a concave arc. At the time of hearing, the shoreline was 21 feet from the row of pilings, at its apogee.

   
   

   APPROXIMATIONS

   
   

5. At no time has the mean high water line along this edge of Bayou Garcon been surveyed, as far as the evidence showed. A hydrographic survey is necessary to locate the mean high water line. According to the testimony of Mr. Kriegel, and of Mark Neiman Snowden, another DER employee, the bulkhead line just to the west of the tree (the third row of pilings) was, according to their interpretation of the permit language, to stay within ten feet of the shoreline existing at the time the permit issued, and this line was thought to be synonymous with "approximate mean high water line."

   
   

6. Since DER issued permit No. 17-11730-1E to respondent, erosion 3/ has occurred along her beach. Her witnesses variously testified that she has lost from six to seven to 30 feet since the canal was unplugged in 1977.

   Petitioner's witness, Mr. Stuart, was unable to say that the beach did not extend 20 feet waterward of the pilings on November 9, 1978. James H. Callaway, one of respondent's neighbors, testified that sand comes and goes on riprap he has placed along his property, so that, even if the shoreline could be located

   precisely at two points in time, "straight line" extrapolation to some intervening time would not be reliable.

   
   

   FILL PLACED

   
   

7. West of the pilings placed (more or less) where the DER and Army Corps permits authorized encapsulating bulkheads to keep backfill around the pine tree from washing away, respondent caused unconsolidated concrete and soils to be placed in the spring of 1981 out into the open waters of Bayou Garcon, extending by 67 feet a fill road running through the salt marsh on her land. See Appendix

   II. The roadway is not perpendicular to the shore but considerably more than 37 cubic yards of fill were dumped in the Bayou in building the road.

   
   

8. Since the top surface of the fill is above water, the marine life destroyed and displaced by filling has not been able to reestablish itself. In any event, widgeon grass takes up to five years to grow back. Sea grass beds provide a habitat for small animals on which foraging fish, who have their own predators, feed. These smaller animals feed in turn on algae that thrives in benthic habitats like the approximately 555 square feet obliterated by extending the fill road out into the water.

   
   

9. The salt marsh, across which the fill road runs down to the promontory into Bayou Garcon, is separated from the Bayou by a berm on which spartina patens predominates. 4/ DER's Exhibit No. 5. For reasons not developed in the record, DER declines to assert jurisdiction over the salt marsh, landward of the berm which was breached at least as early as September of 1978.

   
   

   SUBSEQUENT ARMY CORPS ACTION

   
   

10. Almost a year after the fill for the road was placed in Bayou Garcon, Ms. Lord wrote the Army Corps requesting a two year extension of the Army Corps permit and asking for a modification "to allow rip-rap to replace the proposed vertical bulkhead on the N.E. waterward portion and extend canal bulkhead 3 ft. northward DER'S Exhibit No. 7 (emphasis in original). The Army Corps modified respondent's permit "in accordance with [her] request." DER's Exhibit No. 8. But, on discovering the fill road extending into open waters, the Army Corps issued a cease and desist order dated May 6, 1982.

    
    

    COSTS INCURRED

    
    

11. After the Army Corps advised DER, a field inspection took place. DER incurred inspection and other expenses aggregating at least ninety-three dollars and sixty-six cents ($93.66).

    
    

    PROPOSED ORDERS CONSIDERED

    
    

12. Petitioner's amended review of the record, proposed findings of fact and conclusions of law, and respondent's written argument, proposed findings and conclusions have been considered in preparation of the foregoing findings of fact. To the extent proposed findings of fact have not been adopted, they have been deemed immaterial or unsupported by the weight of the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

13. DER has authority to "institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant or aquatic life, of the state caused by any

    violation," Section 403.121(2)(a), Florida Statutes, (1981) and to "institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation Section 403.121(2)(b), Florida Statutes (1981). In any such proceeding, the burden is on DER to establish its allegations by a preponderance of the evidence. Rule 17-1.59, Florida Administrative Code.

    
    

14. Among the violations on the basis of which DER is authorized to proceed administratively are

    
    

    To fail to obtain any permit required by [Chapter 403, Florida Statutes] or by rule or regulation, or to violate or to fail to comply with any . . . permit . . . issued by the department pursuant to its lawful authority. Section 403.161, Florida Statutes (1981).

    
    

    The evidence showed that permit No. 17-11736-1E was in full force and effect during the whole period of respondent's dredge and fill activities.

    
    

    PERMIT REQUIRED

    
    

15. The Department of Environmental Regulation has regulatory jurisdiction over waters of the state, like Bayou Garcon, to their landward extent, as defined by reference to dominant vegetation at the water's edge. On this basis, DER has had regulatory jurisdiction, at least since the berm was breached in September of 1978, to the landward extent of the salt marsh, because of the predominance of three species listed in Rule 17-4.02(17), Florida Administrative Code, viz., spartina patens, juncus roemerianus and cladium jamaicensis.

    
    

16. Whether or not DER has the authority to cede its jurisdiction over salt marshes on respondent's property or elsewhere and how, if so, that should be accomplished, are not at issue here. DER is bound by what it has pleaded in the notice of violation and orders for corrective action directed to respondent. In this action it seeks relief only as regards dredging and filling waterward of the marsh. DER's regulatory jurisdiction waterward of the landward edge of the berm, at all pertinent times, is clear. Respondent has never challenged petitioner's jurisdiction to issue a dredge and fill permit to her. Indeed, her principal defense is the issuance of the DER and Army Corps permits.

    
    

    MISPLACED PILINGS?

    
    

17. If nothing else, this case shows the inadvisability of using the term "approximate mean high water line" in a permit. Without objection, much testimony was adduced dehors the DER permit as to what was intended by the phrase in the permit, "approximate mean high water line." Respondent testified with evident sincerity that she placed the pilings just where DER permit No. 17- 11736-1E authorized her to. DER witnesses testified that the shoreline on the date permit No. 17-11736-1E issued ought to be determinative. Even on the assumption that "approximate mean high water line" should be construed to mean the shoreline on the date the DER permit issued, petitioner did not carry its burden of proof as to the pilings, because the weight of the evidence did not establish just where the shoreline on November 9, 1978 was; or that it was more than ten feet landward of where the third row of pilings was eventually placed.

    PROMONTORY

    
    

18. Respondent also contends that permit No. 17-11736-1E authorized deposition of fill west of the bulkhead out into the waters of Bayou Garcon. The permit plainly does no such thing. The permit contemplated bulkheading and backfilling, not road-building. The amount of unconsolidated fill exposed to wave action is at least two and a half times what was authorized by the permit

    to be put behind bulkheads. Respondent also contends that the Army Corps permit authorized creation of the promontory. The Army Corps apparently disagrees, as its cease and desist order evinces, and the evidence does no otherwise support this assertion.

    
    

19. Filling in the waters of the state requires a permit pursuant to Rule 17-4.28, Florida Administrative Code and respondent had no permit authorizing placement of the fill so as to build the promontory. Petitioner established, therefore, a violation of Section 403.161(1)(b), Florida Statutes (1981). Petitioner did not prove up its allegations of monetary damages, however.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

1. That petitioner order respondent to remove all unauthorized fill material as indicated on Appendix II, Exhibit 8 to DER's Exhibit No. 3, within ninety (90) days of entry of the final order.

   
   

2. That petitioner order respondent to pay costs of ninety-three dollars and sixty-six cents ($93.66).

DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983.

ENDNOTES

1/ See Appendix 1 2/ See Appendix 1

3/ According to Robert Kriegel, DER's Northwest Florida District Manager, permit No. 17-11736-1E issued solely to authorize bulkheading in order to

"encapsulate" the pine tree for protection, and not so that respondent Lord could reclaim any land she might have lost to erosion.

4/ In the marsh itself, juncus roemerianus and cladium jamaicensis predominate. DER's Exhibit No. 5.

COPIES FURNISHED:

Dennis R. Erdley, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Paul Shimek, Jr., Esquire

311 North Spring Street Pensacola, Florida 32501

Victoria Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Building 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 82-003073

Orders for Case No: 82-003073